Directive 68/360 was repealed by Residence Directive 2004/38/EC. I don't think the Residence Directive will support cases based on a simple comparison to British women, because they automatically have the RTR, and the Residence Directive is all about which non-British Union Citizens have the RTR. Discrimination is allowed under certain circumstances, as I am sure you are aware.
It is generally important to decide if the client is a 'worker who is no longer working', as per Reg 6(2) of the Imm (EEA) regs 2006, or a straightforward 'jobseeker', as per Reg 6(1) of the same regs. The former is a better place to be in terms of rights.
So far as the pregnancy goes, it looks like she was not working when she stopped work, so all the arguments about retained worker status whilst pregnant are no use. There is the possible argument that as a 'worker no longer working' (see above) she can argue they are temporarily incapable for work, especially if there is illness related to pregnancy (would have to be IRESA though). If the client is a jobseeker, there is no facility for claiming benefits during temporary illness.
Can your client pursue RTR based on permanent residence under reg 15 of the regs?
If none of the above help, you could try justifying an IS award via EC Directive 92/85. I have never tried this.
Last of all, there is always the long shot of IS applications based on the direct application of EC Articles (where your post started!). Some suggest Article 12 is a possible winner, but my understanding is that this only rocks by forbidding discrimination between those WHO HAVE the RTR. Then there is the much loved Article 18. The Baumbast fall out suggests that it remains very unclear whether Article 18 will work in cases where the applicant is not self-sufficient. I suppose the eventual outcome of Harrow v Ibrahim may resolve this.
On balance, I think the client should claim JSA, and press for compensation if the advice to claim IS came from Jobcentre Plus. In our area, we have had loads of clients in similar circumstances to yours being told to claim IS. Why so? I hope not simply as away of managing JSA workload.
Happy Easter!
Steve
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